United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF
H. CLELAND UNITED STATES DISTRICT JUDGE
prisoner Mario Durrel Davis (“Petitioner”),
acting pro se, brings a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Following a jury trial in
the Oakland County Circuit Court in 2013, Petitioner was
convicted of possession with intent to deliver less than 50
grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv),
possession of less than 25 grams of heroin, Mich. Comp. Laws
§ 333.7403(2)(a)(v), felon in possession of a firearm,
Mich. Comp. Laws § 750.224f, three counts of possession
of a firearm during the commission of a felony, Mich. Comp.
Laws § 750.227b, two counts of resisting or obstructing
a police officer, Mich. Comp. Laws § 750.81d, possession
of marijuana (second offense), Mich. Comp. Laws §
333.7403(2)(d) and Mich. Comp. Laws § 333.7413(2), and
driving with an unlawful blood alcohol level, Mich. Comp.
Laws § 257.625(1)(c). He was sentenced, as a fourth
habitual offender, Mich. Comp. Laws § 769.12, to
concurrent terms of 3 to 40 years imprisonment on the cocaine
and felon in possession convictions, concurrent terms of 3 to
15 years imprisonment on the heroin and resisting or
obstructing a police officer convictions, a concurrent term
of 1 to 2 years imprisonment on the marijuana conviction, a
concurrent term of 180 days in the Oakland County Jail on the
driving conviction, and concurrent terms of 2 years
imprisonment on the felony firearm convictions, to be served
consecutively to the other sentences.
pleadings, Petitioner raises claims concerning the legality
of a search, the sufficiency of the evidence, a drug quantity
error at the preliminary examination, the admission of drug
profile testimony, the conduct of the prosecutor, the
effectiveness of trial counsel, the state court’s
jurisdiction, and the trial court’s control of the
proceedings. For the reasons that follow, the court denies
with prejudice the habeas petition. The court also denies a
certificate of appealability.
convictions arise from an incident on February 28, 2013 in
Oak Park, Michigan, in which the police found him asleep at
the wheel of his car. Drugs, a gun, and a significant amount
of cash were in his possession. The Michigan Court of Appeals
described the relevant facts, which are presumed correct on
habeas review, see 28 U.S.C. § 2254(e)(1);
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009),
police discovered defendant sleeping in his car, which was in
the roadway and stopped at a red light. The vehicle was in
gear and defendant's foot was on the brake. From outside
the car, an officer could see a liquid-filled cup in the
center console and an empty liquor bottle on the front
passenger seat. When the police removed defendant from the
car, they smelled both alcohol and an odor of marijuana
emanating from inside.
The police searched defendant and his car, and they found
marijuana on defendant's person and a gun in the
car's glove compartment. They placed defendant under
arrest and took him to the police station. While at the
station, defendant attempted to eat a small bag of cocaine
and struggled with police officers when they tried to stop
him from doing so. The police also found a small packet of
heroin on defendant's person during a more thorough
search at the police station.
The prosecutor charged defendant with the following crimes:
(1) possession with intent to deliver less than 50 grams of
cocaine, MCL 333.7401(2)(a)(iv); (2) possession of less than
25 grams of heroin, MCL 333.7403(2)(a)(v); (3) felon in
possession of a firearm, MCL 750.224f; (4) three counts of
possession of a firearm during the commission of a felony,
MCL 750.227b; (5) two counts of resisting or obstructing a
police officer, MCL 750.81d; (6) possession of marijuana
(second offense), MCL 333.7403(2)(d) and MCL 333.7413(2); (7)
and driving with an unlawful blood alcohol level, MCL
At trial, defendant denied that he intended to deliver the
cocaine, and asserted that he did not know of the gun's
location in the car. The jury clearly did not believe
defendant's protestations, and convicted him of all
People v. Davis, No. 318059, 2015 WL 501928, *1
(Mich. Ct. App. Feb. 5, 2015) (unpublished). Additionally,
the court adopts the more-detailed statement of facts set
forth by the prosecution on direct appeal to the extent that
those facts are consistent with the state court record.
See Pros. App. Brf., pp. 1–13.
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals proffering briefs
filed both by counsel and in pro per that essentially raised
the same claims as presented on habeas review. The court
denied relief on those claims and affirmed his convictions.
Id. at *1–7. Petitioner also filed an
application for leave to appeal with the Michigan Supreme
Court, which was denied in a standard order. People v.
Davis, 498 Mich. 873, 868 N.W.2d 626 (2015).
thereafter filed his federal habeas petition. He raises the
following claims as grounds for relief:
I. Petitioner’s Fourth Amendment rights were violated
by the warrantless search of his vehicle and the locked glove
box compartment following Petitioner’s arrest for
operating under the influence of liquor; the state appellate
court decision is an unreasonable determination of the facts
in light of the evidence presented. 28 U.S.C. § 2254(d).
II. The evidence was insufficient to support
Petitioner’s convictions for felon in possession of a
firearm and felony firearm beyond a reasonable doubt.
III. Petitioner should be granted a new trial and/or a charge
reduction where the prosecutor presented material false
and/or inaccurate information at the preliminary examination.
IV. The evidence of possession with intent to deliver cocaine
was insufficient where the prosecutor failed to prove beyond
a reasonable doubt that Petitioner intended to deliver the
very small amount of cocaine.
V. Petitioner was denied a fair trial by the introduction of
improper drug profile testimony.
VI. The prosecutor denied Petitioner a fair trial by
asserting a fact not in evidence in order to argue
Petitioner’s guilt of possession with intent to deliver
VII. Petitioner was denied a fair trial where trial counsel
failed to produce crucial evidence at trial and failed to
request a continuance so that Petitioner’s mother could
appear and testify.
VIII. Petitioner was denied his fundamental due process
protections to a fair trial under both state and federal
constitutions, when the trial court arraigned Petitioner
without first having acquired subject-matter jurisdiction
over Petitioner, creating a jurisdictional defect, that not
only voids Petitioner’s convictions, but demand his
IX. Petitioner was denied his fundamental due process
protections to a fair trial as guaranteed under both the
state and federal constitutions, when the trial court failed
to control the proceedings at all times which resulted in
Petitioner’s void convictions.
X. Petitioner was denied his fundamental due process
protections to a fair trial as guaranteed under both the
state and federal constitutions, when the prosecution failed
in its duty to insure a fair trial, which mandates
Petitioner’s immediate release from custody and a bar
XI. Petitioner was denied his fundamental due process
protections to a fair trial as guaranteed under both the
state and federal constitutions, when Petitioner was denied
counsel at the critical “pre-trial” stage of the
proceedings for refusal to investigate the case, for refusal
to object to the court’s failure to control the
proceedings; and for refusal to object to the prosecutorial
misconduct, all of which are tantamount to abandonment by
counsel that results in structural error.
has filed an answer to the petition contending that it should
be denied because certain claims are barred by procedural
default and because all of the claims lack merit.
Petitioner filed his habeas petition after the effective date
of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241
et seq., the provisions of the AEDPA govern this
case. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. §2254(d) (1996).
state court’s decision is ‘contrary to’ . .
. clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court
cases]’ or if it ‘confronts a set of facts that
are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different
from [that] precedent.’” Mitchell v.
Esparza, 540 U.S. 12, 15–16 (2003) (per curiam)
(quoting Williams v. Taylor, 529 U.S. 362,
405–06 (2000)); see also Bell v. Cone, 535
U.S. 685, 694 (2002).
‘unreasonable application’ prong of §
2254(d)(1) permits a federal habeas court to ‘grant the
writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably
applies that principle to the facts of petitioner’s
case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams, 529 U.S. at 413); see
also Bell, 535 U.S. at 694. However, “[i]n order
for a federal court find a state court’s application of
[Supreme Court] precedent ‘unreasonable,’ the
state court’s decision must have been more than
incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’”
Wiggins, 539 U.S. at 520–21 (citations
omitted); see also Williams, 529 U.S. at 409.
“AEDPA thus imposes a ‘highly deferential
standard for evaluating state-court rulings,’ and
‘demands that state-court decisions be given the
benefit of the doubt.’” Renico v. Lett,
559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at
333 n.7; Woodford v. Viscotti, 537 U.S. 19, 24
(2002) (per curiam)).
court’s determination that a claim lacks merit
“precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(citing Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). The Supreme Court has emphasized “that even a
strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id.
(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or . . . could
have supported, the state court’s decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision” of the Supreme
Court. Id. Thus, in order to obtain federal habeas
relief, a state prisoner must show that the state
court’s rejection of his claim "was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id.; see also
White v. Woodall, __ U.S. __, 134 S.Ct. 1697, 1702
(2014). Federal judges “are required to afford state
courts due respect by overturning their decisions only when
there could be no reasonable dispute that they were
wrong.” Woods v. Donald, __ U.S. __, 135 S.Ct.
1372, 1376 (2015). A habeas petitioner cannot prevail as long
as it is within the “realm of possibility” that
fairminded jurists could find the state court decision to be
reasonable. Woods v. Etherton, __ U.S. __, 136 S.Ct.
1149, 1152 (2016).
2254(d)(1) limits a federal habeas court’s review to a
determination of whether the state court’s decision
comports with clearly established federal law as determined
by the Supreme Court at the time the state court renders its
decision. Williams, 529 U.S. at 412; see also
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting
that the Supreme Court “has held on numerous occasions
that it is not ‘an unreasonable application of clearly
established Federal law’ for a state court to decline
to apply a specific legal rule that has not been squarely
established by this Court”) (quoting Wright v. Van
Patten, 552 U.S. 120, 125–26 (2008) (per curiam));
Lockyer, 538 U.S. at 71–72. Section 2254(d)
“does not require a state court to give reasons before
its decision can be deemed to have been ‘adjudicated on
the merits.’” Harrington, 562 U.S. at
100. Furthermore, it “does not require citation of
[Supreme Court] cases-indeed, it does not even require
awareness of [Supreme Court] cases, so long as neither the
reasoning nor the result of the state-court decision
contradicts them.” Early v. Packer, 537 U.S.
3, 8 (2002); see also Mitchell, 540 U.S. at 16.
requirements of clearly established law are to be determined
solely by Supreme Court precedent. Thus, “circuit
precedent does not constitute ‘clearly established
Federal law as determined by the Supreme Court’”
and it cannot provide the basis for federal habeas relief.
Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per
curiam); see also Lopez v. Smith, __ U.S. 135 S.Ct.
1, 2 (2014) (per curiam). The decisions of lower federal
courts, however, may be useful in assessing the
reasonableness of the state court’s resolution of an
issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir.
2007) (citing Williams v. Bowersox, 340 F.3d 667,
671 (8th Cir. 2003)); Dickens v. Jones, 203
F.Supp.2d 354, 359 (E.D. Mich. 2002) (Tarnow, J.).
court’s factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. §
2254(e)(1). A petitioner may rebut this presumption with
clear and convincing evidence. Warren v. Smith, 161
F.3d 358, 360–61 (6th Cir. 1998). Lastly, habeas review
is “limited to the record that was before the state
court.” Cullen v. Pinholster, 563 U.S. 170,